Public Bill Committee

[Frank Cook  in the Chair] 
CJ 28 Ministry of Justice (supplementary)
CJ 29 Ministry of Justice (supplementary)

Edward Garnier: On a point of order, Mr. Cook. My hon. Friend the Member for North-West Norfolk and I learned over the weekend that the Government propose to drop clause 152 concerning the data-sharing provision on which we have spent a good deal of time in Committee. Indeed, it also took up time on Second Reading. Through you, I ask the Government to clarify their position in regard to clause 152. Such action is an extraordinary way in which to construct a Bill. It is in bad enough shape as it is without the Government adding yet more clauses, as they frequently do, and then pulling one out in the middle of Committee proceedings. My hon. Friend will try to catch your eye to deal with a parallel but not identical point. It is deeply confusing and reprehensible to construct legislation in this way.

Henry Bellingham: Further to that point of order, Mr. Cook. The Minister has made it clear in Committee that the Government would work with the Opposition to find a solution and that nothing would be said to anyone until such meetings had taken place. In The Sunday Telegraph last Sunday, under the headline, Backlash forces U-turn on sharing private data, it was reported that the Secretary of State is to shelve proposals, and that, according to a spokesman, he
recognised that the clause was drafted in a way that was too wide, so it needed to be looked at again.
Surely Ministers should not have been talking to the press before talking to Opposition spokesmen. If an announcement is to be made, it should be made not in the press but in this Committee. You are an upholder of Back-Bench rights and the rights of shadow spokesmen, Mr. Cook, so surely Ministers should be careful about what they do in such circumstances.

Frank Cook: The hon. Gentleman makes his point clearly. I am sure that the Government will have taken note of what he said and, given the opportunity, I am sure that they will respond.

Bridget Prentice: Further to that point of order, Mr. Cook. I accept that the Committee in its scrutiny is aware of the difficulties with clause 152. In fact, I have said in Committee that I want to see whether
we can come up with a more streamlined version that takes into account the fact that Parliament has a role in scrutinising the decisions of Ministers.[Official Report, Coroners and Justice Public Bill Committee, 26 February 2009; c. 390.]
I also said:
I acknowledge that the clause as drafted has the potential to be far wider than it is intended to be.[Official Report, Coroners and Justice Bill Public Bill Committee, 26 February 2009; c. 386.]
As a result of our scrutinising matters in Committee, we have decided to remove clause 152. I apologise to the hon. Member for North-West Norfolk that such details should have appeared in the press before they were brought to the attention of the Committee. However, I have followed the proper process and have asked Cabinet colleagues to withdraw the clause from the Bill so that we can have further consultation. I hope that we shall be able to look at how we can draft a more appropriate clause, not necessarily under the Bill, but at some further stage, so that we can put in place a proper data-sharing provision. I hope that I have clarified the position.

Clause 87

Examination of accused through intermediary

David Howarth: I beg to move amendment 464, in clause 87, page 50, line 24, leave out accused and insert defendant.

Frank Cook: With this it will be convenient to discuss the following: amendment 465, in clause 87, page 50, line 27, leave out accused and insert defendant.
Amendment 466, in clause 87, page 50, line 30, leave out accused and insert defendant.
Amendment 467, in clause 87, page 50, line 33, leave out accused and insert defendant.
Amendment 448, in clause 87, page 50, line 33, at end insert
(2A) The court may give a direction under subsection (3) if, and only if, it has made a determination that the defendant is fit to plead..
Amendment 468, in clause 87, page 50, line 35, leave out accused and insert defendant.
Amendment 469, in clause 87, page 50, line 39, leave out from first the to end and insert
defendant, questions put to the defendant, and.
Amendment 470, in clause 87, page 50, line 41, leave out accused and insert defendant.
Amendment 471, in clause 87, page 51, line 2, leave out accused and insert defendant.
Amendment 472, in clause 87, page 51, line 3, leave out accused and insert defendant.
Amendment 473, in clause 87, page 51, line 4, leave out accuseds and insert defendants.
Amendment 474, in clause 87, page 51, line 6, leave out accuseds and insert defendants.
Amendment 475, in clause 87, page 51, line 7, leave out accused and insert defendant.
Amendment 476, in clause 87, page 51, line 9, leave out accused and insert defendant.
Amendment 216, in clause 87, page 51, line 10, leave out Act 1983 and insert Acts 1983 or 2007 as appropriate.
Amendment 485, in clause 87, page 51, line 11, leave out first and and insert or.
Amendment 477, in clause 87, page 51, line 12, leave out accused and insert defendant.
Amendment 478, in clause 87, page 51, line 15, leave out accused and insert defendant.
Amendment 479, in clause 87, page 51, line 21, leave out accused and insert defendant.
Amendment 480, in clause 87, page 51, line 23, leave out accused and insert defendant.
Amendment 481, in clause 87, page 51, leave out line 25 and insert
defendant is able to see and hear the examination of the defendant..
Amendment 482, in clause 87, page 51, line 43, leave out accused and insert defendant.
Amendment 483, in clause 87, page 51, line 45, leave out accused and insert defendant.
Amendment 484, in clause 87, page 52, line 2, leave out accused and insert defendant.
Amendment 256, in clause 107, page 66, line 3, leave out Act 1983 (c. 20) and insert Acts 1983 and 2007.

David Howarth: The Ministers last point should lead the entire Committee to celebrate the fact that clause 152, which received little support from hon. Members, has now been withdrawn. I thank her for her statement.
Clause 87 is about examining a defendant through an intermediary if the defendant suffers from a disability that makes it difficult for them to participate effectively in the proceedings. The logic behind the clause, as I understand it, is that provision already exists to help witnesses in such circumstances, and since defendants are also often witnesses they should be offered the same facility. There are questions to be asked about why the criteria for defendants seem to be much stricter than those for prosecution witnesses. Either way, it is arguable that it is an improvement for the defendant, because they do not have to apply for intermediary help, but they are allowed to do so through their counsel.
There is one obvious difference between witnesses and defendants: witnesses are not on trial. The question arises with regard to a defendantbut not a witnessof why a person who suffers from a disability that interferes with his or her ability to participate effectively in the proceedings should be on trial in the first place. I accept that it is possible for that not to be the case and that the person with a disability could, with the help of an intermediary, overcome the disability for the purposes of the trial. But it is not clear to me exactly what kind of casewhat sort of person, disability or circumstancethe Government have in mind, and I will ask them to put that on record. Even if there are such cases, as there might well be, obviously that will not always be so. That is why we tabled amendment 448, which provides the safeguard that, before moving to the procedure laid down in the clause, the court must ask itself whether the defendant is fit to plead.
For example, if the defendant cannot comprehend the proceedings so as to make a proper defence, or to challenge jurors, understand evidence or give instructions to his or her legal advisers, the defendant is not fit to stand trial in the first place, at which point the judge has a number of options. The judge can make a guardianship order, a supervision and treatment order, or simply give the defendant an absolute discharge. The Government might say that the defence could raise that point anyway, because the defence is able to raise the fitness to plead point itself, but it might not. If it does not, there is no obligation on the court, as I understand it, to raise it of its own motion, although the court may do so if it wishes.
Another argument against the proposal is that the defence might have a tactical reason for not wanting the issue of fitness to plead to arisefor example, if they do not want there to be the possibility of a supervision and treatment order. The question is why a defendant who is not fit to plead should be treated as one who is. If the problem is that the options open to the court on a finding of unfitness to plead are not flexible enough, perhaps we should revisit that area of the law.
Amendment 485 points to an apparent anomaly in the way in which under-18s and adults are treated under the clause. For an under-18 to qualify for an order, the defendants ability to participate effectively in the proceedings must have been compromised by their level of intellectual ability or social functioning, which seem to be two different ways of describing a learning disability.
However, for an adult to qualify, the defendant must be
unable to participate effectively in the proceedings,
either because of a mental disorder, or because of a
significant impairment of intelligence and social function.
Three questions therefore arise out of the way that the clause is drafted. First, why does mental illness count for adults, but not for under-18s? Secondly, why is the test for under-18s that their ability to participate effectively is compromised by their condition, whereas an adult must be unable to participate? The under-18 test seems to be much easier than the over-18 test. The third point, which is specifically the subject of amendment 485, is why does the possibility of an order arise for an under-18 if there is either a problem with the defendants intellectual ability, or with the defendants social functioning, whereas for an adult it must be both a matter of intelligence and a matter of social function? In passing, what is the reason for the apparently unnecessary variation in phraseologyintellectual ability on one side, and intelligence on the other; social functioning on one side, and social function on the other? Those are my main points.
The other amendments in the group simply raise the verbal question of why the clause maintains the old-fashioned language of the accused instead of the modern language of defendant.

Edward Garnier: I will leave the Minister and the hon. Member for Cambridge to have a discussion about the difference between an accused and a defendant, which I am sure will be interesting.
I join the hon. Gentleman, however, in teasing out from the Government their understanding of the provisions dealing with those suffering from a mental disorder. The reason for amendments 216 and 256amendment 256 deals with clause 107, but the point is the sameis that clause 87(6)(a) mentions
a mental disorder (within the meaning of the Mental Health Act 1983).
However, section 1 of the Mental Health Act 2007, whose title is Removal of categories of mental disorder, reads as follows:
(1) Section 1(2) of the 1983 Act...is amended as set out in subsections (2) and (3).
(2) For the definitions of mental disorder and mentally disordered substitute
mental disorder means any disorder or disability of the mind;
and
mentally disordered shall be construed accordingly;.
(3) The following definitions are omitted
(a) those of severe mental impairment and severely mentally impaired,
(b) those of mental impairment and mentally impaired, and
(c) that of psychopathic disorder.
(4) Schedule 1 (which contains further amendments to the 1983 Act and amendments to other Acts) has effect.
Section 2 of the 2007 Act goes on to deal with learning disabilities. Subsection (2) inserts into the 1983 Act the following subsection (2A):
But a person with learning disability shall not be considered by reason of that disability to be
(a) suffering from mental disorder for the purposes of the provisions mentioned in subsection (2B) below; or
(b) requiring treatment in hospital for mental disorder for the purposes of sections 17E and 50 to 53 below,
unless that disability is associated with abnormally aggressive or seriously irresponsible conduct on his part.
It then lists a host of other provisions, which are affected by these amendments, in the 2007 Act. I am sure that there is a good explanation why clause 87 mentions only the Mental Health Act 1983, and I ask the Government to provide that explanation. If I have misled myself regarding the 2007 Act, I hope that the Minister is able to tell me why.

Bridget Prentice: I will deal with amendments 464 to 484 first, and then move on to the more detailed amendments. Regarding the proposed substitution of the term accused for defendant, first, there is no legal difference between the two. When I first looked at the amendments, I had every sympathy for them; in fact, I was tempted to accept them. But, unfortunately, I must ask the hon. Member for Cambridge to withdraw his amendment. The clause inserts a new section into the Youth Justice and Criminal Evidence Act 1999, and we have used the language of that Act to achieve consistency. If I accepted the amendmentsmuch as I would like to modernise the language, as the Under-Secretary of State for Justice, my hon. Friend the Member for Liverpool, Garston rightly advocates that we dowe would end up, in the 1999 Act, with the word accused in some parts and defendant in others; that would just sow seeds of confusion all round. For that reason alone, I am unable to accept those amendments on this occasion.
On the use of an intermediary by vulnerable defendants if and when they are giving oral evidence, it is important to explain that the intermediary is there to assist with communication when a person is being questioned as a witness. The clause is modelled on the vulnerable witnesses intermediary provision in section 29 of the 1999 Act, which was rolled out nationally last year after a successful pathfinder phase. The intermediary eligibility criteria for vulnerable adult defendants refer, as the hon. and learned Member for Harborough said, to the Mental Health Act 2007. Amendment 216 would add a reference to the 2007 Act, but that is superfluous, as the 2007 Act amends the 1983 Act, so the clause correctly refers to the 1983 Act alone. The same principle applies to amendment 256, which would make a similar change to clause 107, which concerns sentencing provisions.
Amendment 448 would create a precondition that the court must determine that a defendant is fit to plead, before giving a direction for him or her to be assisted by an intermediary. But clause 87 provides that vulnerable defendants are eligible for intermediary assistance if their
ability to participate effectively in the proceedings as a witness giving oral evidence in court is compromised by the accuseds level of intellectual ability or social functioning,
and they are under 18. As the hon. Member for Cambridge said, if the defendant was over 18, the test would be that the defendant must be suffering from a mental disorder or
a significant impairment of intelligence and social function,
and that the use of the intermediary was necessary to ensure that they would receive a fair trial.
To require defendants to be found fit to plead before they can be granted an intermediary confuses two separate issues. The test for fitness to plead is a different and more stringent common law test, regarding a defendants capacity to understand the course of proceedings and to make a proper defence. It is a matter for the defence or the prosecution to claim unfitness to plead. The judge will not determine that except on the basis of evidence from medical practitioners, at least one of whom must have specialist experience in the diagnosis or treatment of mental disorder. That is an entirely separate procedure from the issue of whether to apply for an intermediary application, which will be relevant only if the contested trial is allowed to proceed, and the defendant intends to give evidence.

David Howarth: I accept that point. The question then arises of whether fitness to plead determinations are intended to be taken before intermediary order determinations or after. If they are taken after, the intermediary order could be taken into account in fitness to plead, but if the other way around, not. The drafting of the Bill is not clear on what processthe order of decision makingis intended. That will need to be sorted out at some stage, because it will arise.

Bridget Prentice: It is important to make the order in which such things would happen clear. My understanding is that the fitness to plead ought to be taken first; if the person was found not fit to plead, no trial would take place. With specialist medical practitioners, presumably their evidence might address whether, if the trial were to go ahead, that particular defendant would need to make the application for intermediary help. That would be the logical and sensible order, but I shall ensure that that is clarified.
It would be wrong to restrict the ability of the defence to apply for an intermediary for a defendant by making it a condition that fitness to plead must be determined first. It would not necessarily always be the case that fitness to plead would have to be determined in a particular defendants case. For examplethe hon. Member for Cambridge asked for examplessomeone at the lower end of the autism spectrum might need the help of an intermediary, but would not be likely to have to ask for a fitness to plead decision to be made. Someone might have difficulty with long concentration spans and might need to be given the opportunity to have breaks in the course of questioningagain, that is not a fitness to plead issue, but it concerns their ability to communicate during the trial.
Under amendment 485, the hon. Gentleman raised the issue of making an adult defendants eligibility for an intermediary closer to that for someone under 18. As he said, the effect would be that eligible adults must have a significant impairment of intelligence or social functioning rather than both. The reason for having both is the same as that in section 33A of the Youth Justice and Criminal Evidence Act 1999, which is the provision that made the use of live links available for eligible, vulnerable defendants to give evidence in court, when that use was previously available only for eligible witnesses. The distinction between the eligibility criteria applied to adults as compared with children reflects the fact that it is not uncommon for juvenile defendants to require assistance giving oral evidence and communication generally, regardless of their mental capacity. There should, however, be a strong presumption that adult defendants are able to give oral evidence in court. That is why the more stringent test is required by the court before it would approve the use of a live link for adult defendants.
In the light of those explanations, I hope that the hon. Gentleman will withdraw his amendment.

David Howarth: I am grateful for the explanation about accused rather than defendant, although it means that we have long chains back. The amendments to the Act were only passed in 1999, in which year defendant was the current phrase, so presumably the old-fashioned language was used because the amendments were to some other Act, and back it goes. We shall end up using prisoner on that basis, if we do not watch out.
On fitness to plead, I am glad for the explanation, but as I said in my intervention it raises the issue of the order in which things happen. The Bill might have to be altered to clarify that.
On the final issueadults as against under-18s in eligibility for the orderI took the Ministers point about not having the same presumptions for young people as for older people. She answered that question, but not the other points about the differences between the two eligibility criteria. Will she further consider those matters as well as the ones raised directly by the amendment? With that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Edward Garnier: I beg to move amendment 217, in clause 87, page 51, leave out lines 14 to 27.
The amendment stands in my name and those of my hon. Friends. It looks to be a drastic measure as it seeks to delete the whole of subsection (7), but it is tabled not in any spirit of aggression, but because I want to find out what the Government mean.
I might have entirely misread it, but I am not sure that the syntax allows the subsection to be understood properly. I will read it out, and perhaps in doing so I will provide an answer to my own question:
Where a live link direction under section 33A has effect in relation to the accused, any examination of the accused in pursuance of a direction under subsection (3) must take place in the presence of such persons as Criminal Procedure Rules or the direction under subsection (3) may provide, but in circumstances in which
and it sets out three sets of circumstances. It continues:
For the purposes of this subsection any impairment of eyesight or hearing is to be disregarded.
I can probably guess at what it tries to do, but I am not sure how it works. When the subsection mentions circumstances in which certain things apply or happen, one would expect something to follow. However, nothing follows but a full stop. I wonder whether there are words missing after accused in line 25, or whether I have failed to spot a verb within the preceding passage, or whether, instead of a full stop after accused, there should be a comma or semi-colon, line 26 should start with for rather than For, and something else should follow. It is as simple as that. I might have utterly misread it, but if this is to become part of the criminal law of England, we should know what it means.

Bridget Prentice: I hope that I can clarify this point for the hon. and learned Gentleman. It was helpful of him to read out subsection (7) as it began to fit into place more coherently. It states that where a live link direction is given and an intermediary is appointed, for such a person to be there the following three things, as listed in paragraphs (a) (b) and (c), must happen. The judge must be able to
see and hear the examination of the accused and to communicate with the intermediary,
the jury should be able to
see and hear the examination of the accused,
as should
any other person charged in the same proceedings as the accused.
Where a live link takes place, all those people must be able to see and hear what is going on. That is the explanation for subsection (7). I agree that it is worded in a convoluted fashion. Does that make it clearer to the hon. and learned Gentleman?

Edward Garnier: I regret to say that it does not. This is not something that we should spend too much time on. It is a question of taking it away, producing a formal redraft and presenting it again on Report without the need for debate.
Let me try this again as I am genuinely confused. I understand what the Minister says, but that does not reflect what is in the subsection.
I am going to try your patience, Mr. Cook, I am sorry, but it is important to sort out this point, if Committee is to have any purpose. I understand:
Where a live link direction under section 33A has effect in relation to the accused, any examination of
that person
must take place in the presence of such persons as Criminal Procedure Rules or the direction under subsection (3) may provide.
That is easy. However,
but in circumstances in which,
takes us into another arena. The changes in circumstances are described as those where
the judge or justices...and legal representatives acting in the proceedings are able to see and hear the examination of the accused and to communicate with the intermediary.
What should happen in circumstances that are different from those in the preamble of subsection (7) but that fit into paragraph (a)? What should happen in circumstances in which the jury can see the examination of the accused? What should happen in circumstances in which any other person charged in the same proceedings as the accused can see and hear the examination of the accused? Answers to those questions should be found in the subsection. Paragraphs (a), (b) and (c) are implied interrogatories, and there should be answers after paragraph (c), but there are none. There is a full stop, so we are left hanging there, wondering what the next exciting episode of the story is. All we are told is:
For the purposes of this subsection any impairment of eyesight or hearing is to be disregarded,
which is an entirely worthy thing to put in the Bill, but not an answer to the questions left hanging by
but in circumstances in which...(a)...(b)...and...(c)
occursomething should happen. What should happen? The Bill is silent, and the construction of the English is so confused as to make it perplexing.
I do not want to waste the Committees time further. Either I have completely misunderstood and am being obtuse and stupidI put my hand up and say that it would not be the first timeor there is some piece of syntactical messing around that can solve the problem. We shall not do that nowthere is no point redrafting the Bill in Committeebut if the Minister and her officials could have another think, we might make some progress.

Bridget Prentice: I understand how the hon. and learned Gentleman is a little confused. There is not an implied interrogatory. Paragraphs (a), (b) and (c) say that all those groups of people have to be able to see and hear what is going on, if the live link direction at the beginning of subsection (7) is given. There is not a follow-on. Rather than saying
but in circumstances in which,
perhaps the subsection should say something simpler, such as and that the judge, the jury and any other person are able to see and hear what is going onthat would be good.

Edward Garnier: That is helpful. And and but are different sorts of word. They are both conjunctions, I accept thatlots of words are nouns, but they mean different things. However, we are getting into angels on the head of a pin. The Minister has got my point and, if she has finished, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 87 ordered to stand part of the Bill.

Clause 88 ordered to stand part of the Bill.

Clause 89

Directions to attend through live link

Edward Garnier: I beg to move amendment 86, in clause 89, page 52, line 22, at end insert
(1A) In section 57A (live links: introductory) after subsection (2) insert
(2A) A live link direction shall not be given in the absence of the accuseds consent unless the court is satisfied that he or his legal representative has been informed by the court or the prosecution of the nature and purpose of the live link hearing..
The clause amends the Crime and Disorder Act 1998. The amendment would create proposed new subsections (1A) and (2A). The changes are partly a matter of common sense, and will be clear to those present at the discussion in the court about the use of the live link. We hope that no order will be given for a live link hearing unless the accused knows what is going on. However, in the case of an absent accused person, it is all the more important that the procedure, the purpose and the consequences of the order are made superabundantly clear to them, so that there is no confusion and, thus, no unnecessary cause for subsequent appeals or disturbance of the process.

David Howarth: It does not seem entirely sensible for all the arrangements that have been piloted on such matters to be changed under clause 86 before they have been finished and evaluated. Will the Minister explain at some stage why the changes are being made now or, if indeed, whether they will be made now or after the pilots have been completed?

Bridget Prentice: I do not disagree with the objective of the amendment tabled by the hon. and learned Member for Harborough, but I hope that I can convince him that it is unnecessary. When defendants are represented, we legitimately expect that their representatives will explain to them the nature of the hearings. Indeed, if there are doubts during the hearing about the defendants understanding of the process, we expect the court rightly to intervene. In cases when the defendant is unrepresented, the court will always endeavouras it does at the momentto give whatever assistance is necessary, so that the defendant can understand the proceedings. In fact, it would be highly unlikely in practice for a court to begin a live link hearing without an explanation being given to the defendant about its nature and purpose. That explanation can be given either at the start of the hearing when the direction is given or, for example, at a pre-arranged sentence hearing.
The court has to be satisfied that it would not be contrary to the interests of justice to give the live link direction. It could not satisfy itself in that way without first ensuring that the defendant understood what was going on. I hope that I have given the hon. and learned Gentleman sufficient confidence to enable him to withdraw the amendment.

Edward Garnier: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 89 ordered to stand part of the Bill.

Clause 90 ordered to stand part of the Bill.

Clause 91

Searches of persons answering to live link bail

Edward Garnier: I beg to move amendment 91, in clause 91, page 54, line 12, leave out from constable to of and insert
must record or cause to be recorded all.

Henry Bellingham: It sounds like a Liberal Democrat amendment.

Edward Garnier: I accept what my hon. Friend the Member for North-West Norfolk has said from a sedentary position. That we associate the Liberal Democrats with recording information in police stations shows how politics is changing.
Amendment 91 gives rise to a discussion similar to the one that we had earlier. It would make it clear that proper procedures and processes must be followed. It sounds tedious, but it essentially changes may to must, which is an old argument that often takes place in Public Bill Committees.
I seek to ensure that those who are in police stations answering to bail via a live link between the police station and the court have their possessions adequately recorded. It should not be a matter only of constables discretion; we need something a little more formal. I appreciate that police officers have plenty to do without writing down huge amounts of information, but this measure comes from an abundance of caution. It seeks to ensure that there are no problems after a live link hearing, when the person answering to bail says, Well, I came in with such and such, and now I dont have it. The policeman must have stolen it, or the police have lost it. It is a sensible precaution to have things recorded as a matter of course, rather than as a matter of discretion.
Amendment 87 is perhaps of more importance. It is designed to help the police and those who administer the criminal justice system. At the moment, subsection (6) says:
The constable carrying out a search under subsection (1) must be of the same sex as the person being searched.
As a matter of general policy, that is sensible and civilised. However, one can imagine circumstances in which it would not strictly be necessary for a same-sex search to take place, particularly those circumstances outlined in amendment 87. There might be people who are happy to be searched by someone of the opposite sex, and as long as that does not cause embarrassment or other problems for the searcher, the police should be prepared to accept that consent.
If there is a wholly unreasonable refusal to be searched by someone of the opposite sex, why should a relatively senior police officer not be able to exercise common sense and discretion to conclude that a same-sex search would be impractical, and that an opposite-sex search could be carried out without causing the concerns outlined in our amendment? There are plenty of good reasons for having same-sex searches, but there may be occasions where that is not sensible and it would be unreasonable to insist on it. I put that forward for the consideration of the Committee, and invite the Government to respond.

David Howarth: As the hon. and learned Gentleman said, amendment 91 is a Liberal Democrat type of amendment, and I am glad to support it. I want to add a more general point about amendment 87 and how the provision seems to work.

Frank Cook: Order. We have not yet got to amendment 87. We will come on to that when we have finished with amendment 91.

Edward Garnier: I apologiseI jumped ahead. If the Minister would like to respond to my argument in relation to amendment 91, I will in due course make some arguments about amendment 87.

Frank Cook: Oh dear. Minister, would you care to oblige the hon. and learned Gentleman?

Bridget Prentice: I will do what I can. Clause 91(4), which the amendment relates to, states:
The constable may record or cause to be recorded all or any of the things seized and retained.
That is based on section 54(2) of the Police and Criminal Evidence Act 1984, which applies to searches of detained persons at a police station. The provision originally required a recording of everything that a detained person had with them, which is the effect of the hon. and learned Gentlemans amendment. But the present wording was substituted in by the Criminal Justice Act 2003 to reduce the substantial burden on police officers through having to record large volumes of property. The change enabled officers to put all the defendants belongings into a sealed bag, and then record the bag rather than each individual item. The amendment would create a provision that is not unlike one that was amended by Parliament as recently as 2003. Given that both sides of the Committee would like to reduce unnecessary police bureaucracy, I hope that the hon. and learned Gentleman will withdraw his amendment, and after that, I will discuss amendment 87.

Edward Garnier: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Edward Garnier: I beg to move amendment 87, in clause 91, page 54, line 16, after searched, insert
unless that person consents to being searched by a police officer of the opposite sex or a police officer of the rank of Inspector or above concludes that a same-sex search would be impractical, that any such search can be carried out without causing racial, religious or sexual offence and that unreasonably to insist on a same-sex search would unnecessarily delay the bail hearing..

Frank Cook: This should be brief, I think.

Edward Garnier: It is.

David Howarth: I have a slightly more general worry about how the clause works. Subsection (2) states that:
a person who fails to attend at a police station at the time appointed for the person to do so includes a reference to a person who
(a) attends at a police station to answer to bail granted subject to the duty mentioned... but
(b) refuses to be searched under section 54B.
The provision is rather strange. If someone turns up at a police station to answer to bail, so that they can take part in a live link, they count as not having turned up if they refuse to be searched. However, they are allowed to refuse to be searched under the clause, for example, in circumstances where a person of the same sex is not available.
In any case, the whole thing seems odd. Proposed new section 54B gives a power to search, and in circumstances where the clause applies, it appears that people who turn up at a police station, say that they are answering to their bail, but do not want to be searched, would go against the law. If that were the caseif they were then forced to be searchedthey will count, simultaneously, as having refused to turn up for their bail hearing. That seems to make no sense, so the whole section seems rather confused. I would like the Minister to explain why it is that a person in that position is put in jeopardy of being told that they have failed to turn up, when plainly, they have.

Bridget Prentice: I will first respond to the hon. and learned Member for Harborough, who tabled the amendment. He suggested that there are situations where the search could be conducted by a constable of the opposite sex. Proposed new section 54B to the Police and Criminal Evidence Act 1984 requires that the defendant answering to live link bail be searched by a constable of the same sex, which is in line with the position of searches for detained people under section 54(9) of the 1984 Act. I do not see a particularly good reason for treating defendants answering to live link bail differently from other detained persons. I am not sure that everyone would accept that it is better to oblige a defendant to submit to being searched by a member of the opposite sex rather than, perhaps in a live link case, to delay the hearing by a little while. Practically, it would be unusual for there not to be an appropriate officer who could conduct a same-sex search in a live link bail case. On that basis, I hope that the hon. and learned Gentleman will withdraw his amendment.
I turn to the comments made by the hon. Member for Cambridge. In order to ensure the safety of people and minimise any risk of harm to them or the defendant at the police station, it is important that the police have the power to search defendants on their return to the station to answer to live link. The new power will be available as a matter of routine, though the police will have some discretion, and in practice the search will be risk-based. That is appropriate, because it puts the defendant answering to live link bail at a police station in the same position as those answering to bail at court.
I realise that does not fully answer all the points made by the hon. Gentleman, but I want to reflect on what he said to make sure that there is no distinction between what happens to the live link bail defendant and someone bailed at court. It is not the purpose of the provision to force defendants to be searched; it is just to confer power on the constable to be able to do so. If the defendant were to refuse, they would be treated as though they had just been charged. That is in effect what would happen, and they would be dealt with accordingly, which would put them on a parallel with someone bailed from court. On that basis, I ask the hon. Gentleman to withdraw his amendment.

Edward Garnier: I thought we were going to have a David Thomas moment. It is well worth having them from time to time to expose the pinchpoints in the drafting of the legislation. I think that the point made by the hon. Member for Cambridge was rather more interesting than mine. None the less, I accept the thinking behind the Ministers response, even if I am not wholly convinced by it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 91 ordered to stand part of the Bill.

Clause 92

Use of live link in certain enforcement hearings

Bridget Prentice: I beg to move amendment 290, in clause 92, page 56, line 10, leave out from where to must in line 11 and insert
it has power to do so a court decides not to give a live link direction under this section, it.
I hope that the hon. and learned Member for Harborough likes this amendment, as it corrects a grammatical error. On that basis I ask the Committee to support it.

Edward Garnier: I will appear rather churlish. I wrote on the amendment paper, next to amendment 290, What is the difference between this and that which is in the Bill? If the Minister says that her amendment does what she says it does, I will not complain.

Amendment 290 agreed to.

Edward Garnier: I beg to move amendment 88, in clause 92, page 56, line 21, at end insert
(4) For the avoidance of doubt, an enforcement hearing relating to a confiscation order under this section does not include a contested application for a confiscation order..
Will the Minister clarify that the thrust of the amendment is one with which she agrees? If it is not included in the Bill, the point should be made clear in any form of practice direction or other rule-making order.

Bridget Prentice: The hon. and learned Gentlemans amendment is trying to avoid a doubt that does not exist. Although clause 92 does not apply for the purpose of making confiscation orders, where the application is contested or not, orders can still be made by live link under the sentencing provisions in section 57E of the Crime and Disorder Act 1998. A live link direction can be given only if the court is satisfied that it is not contrary to the interests of justice to do so and, if the defendant is to give oral evidence, that it is not contrary to the interests of justice for them to give evidence in that way.
In practice, the courts do not usually give live link directions for the purpose of making confiscation orders where the proceedings are contested, mostly because that is likely to be time consuming. I hope that the hon. and learned Gentleman feels able to withdraw his amendment.

Edward Garnier: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 92, as amended, ordered to stand part of the Bill.

Clause 93 ordered to stand part of the Bill.

Clause 94

Effect of admission of video recording.

Question proposed, That the clause stand part of the Bill.

David Howarth: Clause 94 amends section 138 of the Criminal Justice Act 2003. That section has never been brought into force. Clause 94 raises the question whether the Government intend to bring section 138, and section 137 which goes with it, into force. Why does removing the rule,
no evidence in chief on matter dealt with adequately in recorded account,
make section 138 more acceptable?
Perhaps I should give some background. Sections 137 and 138 of the 2003 Act would cause a big changea radical departurein how evidence is given in many cases. They would mean that all the significant witnesses in a case could be interviewed on video soon after the incident took place and that that video could count as their evidence in chief. That goes way beyond the present arrangements, which are only for vulnerable witnesses and children. I do not need to go into the historythe 1989 Pigot committeealthough that committee made the even more radical suggestion that for children, the cross examination should be in chambers, and videoed as well. That was part of some radical thinking on the way in which evidence might be taken in court.
Do the Government intend to bring sections 137 and 138 into force? If that is the case, why will the clause help them to do so? Finally, sections 137 and 138, if they are brought in, apply only to offences specified by the Secretary of State. The obvious question is, if the intention is to bring those provisions into force, which offences do the Government intend to specify?

Edward Garnier: The hon. Gentleman provokes me into making a further point. He correctly states that section 138 of the Criminal Justice Act 2003 has not yet been brought into force. If one goes through the 2003 Act, many provisions have not yet been brought into force; some have been amended, as this one will be, despite not having been brought into force, and some have been brought into force and already repealed. We have an object lesson in how not to construct the criminal law. The Bill is a classic example, as we have seen with clause 152, of how the Government rush into things. They thought that passing a Bill was the answer to the problem, but they did not even implement the solution that they said was so essential.

Frank Cook: Order. I remind the Committee that we are discussing the question of clause 94 standing part of the Bill, not wider arguments.

Edward Garnier: I am illustrating why there is a real question to be asked of the Government as to why clause 94 should stand part of the Bill. History tells us that the Government make other clauses stand part of other Bills and then seek to effect those provisions with subsequent Bills, such as clause 94, leaving us all deeply sceptical about how the Government produce legislation. My point is of general application, but is particularly highlighted by clause 94. The hon. Member for Cambridge made a point, correctly, about section 138 not being enforced.

Bridget Prentice: With regards to sections 137 and 138, we value video-recorded statements, but we are giving priority to video-recorded statements made by vulnerable and intimidated witnesses under section 27 of the Youth Justice and Criminal Evidence Act 1999. Considerable resources are needed to provide verbatim transcripts of the video recording, which the courts require for contested trials. The practice of recording witness statements also has substantial resource implications for the police, including the cost of equipment and training. Priority has, therefore, been given to statements from all child witnesses, vulnerable adults and complaints in sex-offence cases in the Crown court. We hope to extend that further to other intimidated witnesses in due course, but the use of video-recorded statements for such witnesses has not been ruled out. It is a matter of case-by-case discretion.
Consideration will be given to implementing video-recorded statements for significant witnesses after we have had the opportunity to assess the impact of section 27. No decision has yet been taken on the offences that will be covered by that provision. It is likely that it will apply to serious offencesindictable ones onlybut there is the power to extend it to either-way offences.
At present, there is a bar on asking significant witnesses further questions about matters that the court considers have been dealt with adequately in video recording. The present restriction was introduced in line with the current restriction on asking vulnerable or intimidated witnesses supplementary questions following the playing of the video-recorded evidence in chief. However, clause 86 relaxes the restrictions in the Youth Justice and Criminal Evidence Act 1999. This clause brings the legislation for significant witnesses giving evidence by live link broadly into line with clause 86, while taking into account that we are not dealing with vulnerable witnesses, so no special protections are required for the witnesses. I hope that that gives some idea of the Governments thinking on clause 94.

Question put and agreed to.

Clause 94 accordingly ordered to stand part of the Bill.

Clause 95

Admissibility of evidence of previous complaints

Question proposed, That the clause stand part of the Bill.

Edward Garnier: I want to clarify the purpose behind the amendment of section 120(7) of the Criminal Justice Act 2003. The relevant part of the 2003 Act sets out the conditions under which a previous statement made by a witness is
admissible as evidence of any matter stated of which oral evidence by the witness would be admissible.
I will not go through the first two conditions, but the third is that
(a) the witness claims to be a person against whom an offence has been committed,
(b) the offence is one to which the proceedings relate,
(c) the statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence.
Paragraph (d) is the one to be excised. It refers to cases where
the complaint was made as soon as could reasonably be expected after the alleged conduct,.
Other cases are where
(e) the complaint was not made as a result of a threat or a promise, and
(f) before the statement is adduced the witness gives oral evidence in connection with its subject matter.
Subsection (8) states:
For the purposes of subsection (7) the fact that the complaint was elicited (for example, by a leading question) is irrelevant unless a threat or a promise was involved.
That emerges, I assume, from allegations of historical sex attacks. Those could involve a young child or teenager who makes a complaint of a sexual assault when they are in their 20s or 30s. The fact that the complaint is old, but none the less made
as soon as could reasonably be expected after the alleged conduct
should not prevent the information from being presented to the court.
During the past few months, there was a Court of Appeal decision in which Lord Justice Latham was the lead judgeI will be corrected, if I have got that wrong. If I remember correctly, he permitted old complaints of sexual assaults to be adduced before the current trial under common law. That is sensible, as long as appropriate direction is given as to the weight of the old evidence. It must be clear that arrangements will be made through practice directions or other forms of guidance to ensure that juries are properly warned that although old complaints are not inadmissible under all circumstances, appropriate consideration must be given to their weight as evidence in a case that might be tried 10, 20 or 30 years after the event.

Bridget Prentice: There is little, if anything, on which I disagree with the hon. and learned Gentleman. The change is to allow evidence of complaints of an alleged offence to be admitted, even if there has been a gap between the alleged offence and the victim bringing it to someones attention. The court will retain its discretion to decide to exclude such evidence, if it feels that it is unfair to the defendant. The hon. and learned Gentleman uses exactly the right types of exampleswe are looking carefully at the Court of Appeal case to which he referred to see how we can use the clarification made there and ensure that we give effect to it.

Question put and agreed to.

Clause 95 accordingly ordered to stand part of the Bill.

Clause 96

Powers in respect of offenders who assist investigations and prosecutions

Edward Garnier: I beg to move amendment 89, in clause 96, page 57, leave out lines 27 and 28.

Frank Cook: With this it will be convenient to discuss amendment 90, in clause 96, page 57, line 29, leave out paragraph (b).

Edward Garnier: This clause is of considerable significance, as it adds to the authorities that may give immunity from prosecution. Under section 71(4) of the Serious Organised Crime and Police Act 2005, a specified prosecutor can issue an immunity notice. It lists the
Director of Public Prosecutions...the Director of Revenue and Customs Prosecutions...the Director of the Serious Fraud Office...the Director of Public Prosecutions for Northern Ireland,
as specified prosecutors and refers to their being able to designate someone within their departments as a specified prosecutor for the purposes of issuing an immunity notice. That is fine so far as it goes, but additional specified prosecutors can be created under clause 96(3), such as the Financial Services Authority. Moreover, I find the reference to
the Secretary of State for Business, Enterprise and Regulatory Reform, acting personally
alarming. I know that the Secretary of State, the noble Lord Mandelson of every conceivable village we can think of, might be a relevant witness in a criminal proceeding having had green slimeallegedlythrown at him by a protester.

David Howarth: Allegedly?

Edward Garnier: Allegedly was meant to be a joke. It was not very funny, I agree, but it makes the day worth living.
Why on earth should a Secretary of State, irrespective of the current office holder, be designated as a specified prosecutor for the purposes of issuing immunity notices in his personal capacity?

Alun Michael: I appreciate that the hon. and learned Gentleman is asking a question, not making a point. Surely the right principle is involved, which is that people should use the powers of the Secretary of State only when it is clear that that is what they are doing. I always objected if an announcement was made that the Secretary of State had done x, y or z, if I had not taken that decision. It should be clear that the person was acting within the powers. The wording makes it clear that the power can be exercised only personally by the Secretary of State. It is does not mean a personal capacity in that sense, but that the power cannot be used anonymously by someone within the bureaucracy.

Edward Garnier: That may be the answer. The right hon. Gentleman has been a Secretary of State as well as a Minister of State, so he understands the nicety of the exercise of power by an officer of the Crown.
Under section 71(4)(e) of the 2005 Act, a prosecutor can be a designated person, and the DPP can therefore designate someone else. That may be why such a distinction is placed under the Bill, but why should the Secretary of State for Business, Enterprise and Regulatory Reform be singled out as a relevant person to have the power to issue an immunity notice? Why not the Chancellor of the Exchequer, the Home Secretary or the Foreign Secretary? What is so magic about the office of the Secretary of State for Business, Enterprise and Regulatory Reform? I am concerned not about the office, but about the fact that the office holder will be acting personally. Such constitutional questions need a response.
Amendment 90 simply deals with the consequential adjustment of the paragraphs.

David Howarth: I strongly support the amendment. It seems peculiar to count the Secretary of State for Business, Enterprise and Regulatory Reform, as acting personally as a prosecutor. Is one to imagine Lord Mandelson carrying out interrogations of potential witnesses, before deciding to drop cases?
As the hon. and learned Gentleman has said, there is a constitutional issue that relates to the Bill of Rights 1689. We say in this country that the Crown has no power to dispense with the law or to give immunity to particular individuals from prosecution. So far, the exceptions that we have made to that principle in legislation have involved examples where the prosecutor has at least some degree of independence. I am often worried about whether prosecutors in this country have sufficient independence from Ministers. That has been a problem especially with the Serious Fraud Office, which is subject to superintendence by the Attorney-General not only in its prosecutorial decisions, but in its investigations, which is too close a relationship.
The example in the Bill goes way beyond that. Here, it is not just a question of a Minister of the Crown superintending a prosecutor with no one being exactly clear what that means and, for example, different Attorneys-General having different views about what they can do. The Bill says that this particular Secretary of State can act personally, which raises some serious problems. If the Secretary of State for Business, Enterprise and Regulatory Reform were in a position to give immunity to Mr. Deripaska or Sir Fred Goodwin, it would seem to cross a constitutional line.
Underlying that is a serious organisational problem in DBERR, because it brings criminal prosecutionsit has the old Department of Trade and Industry powersunder companies legislation of various sorts. Fraudulent trading is the classic example, and part of the Department conducts such prosecutions. But unlike, for example, Revenue and Customs, the SFO and the DPP, that office is not set up separately under statute and given a separate statutory existence and its own powers. Technically, it exercises the powers of the Secretary of State. That is where the problem isleaving aside the perfectly reasonable, but perhaps more knockabout points about whether Lord Mandelson is going to intervene in particular prosecutions.
The underlying, serious point is that there is something wrong with the way in which DBERR is organised, and there needs to be a much clearer separation of its prosecuting powers from the Secretary of State. It is far too political in an area that is normallyperhaps this is no longer the casenot political. A prosecutorial decision about whether to prosecute a case of fraudulent trading is not a political issue, and Ministers should be, clearly and under statute, further removed from those decisions.

Bridget Prentice: I suspected that the clause and amendment would be a gift to the Opposition in that they would not be able to resist making some comment about the present Secretary of State for Business, Enterprise and Regulatory Reform, my right hon. and very excellent Friend Lord Mandelson. However, I hope to persuade them that their anxiety is unnecessary.
The powers of the special prosecutor are exceptional, and they are available to prosecutors dealing with serious and organised crime. Clause 96 extends those powers to DBERR and the FSA, because both of them deal with serious financial crime that has a serious impact on the United Kingdoms economy. Both need to have the full range of tools available to other prosecutors, if they are to fight serious financial crime. The amendments in the name of the hon. and learned Gentleman would remove from DBERR the opportunity to be one of those prosecutors.
No one would disagree that part of that Departments role is to investigate and prosecute serious fraud, which is crucial in establishing fair markets for legitimate enterprises and creating wealth and employment in this country. Increasingly, sadly, it is dealing with more and more serious and complex fraud allegations. The most common offences investigated and prosecuted relate to personal or company insolvencies. The offences include fraudulent trading and malpractice by company directors during the wind-up or liquidation of a company and the use of phoenix companies. The seriousness of the crimes investigated and prosecuted by DBERR is illustrated by their current investigation of some 80 fraudulent trading cases, in which the total loss to creditors is estimated to be in excess of £200 million. We are talking about not minor offences, but pretty serious stuff.
The Department is also investigating criminal offences with an estimated total loss to the UK economy of over £333 million. It makes no sense to extend the powers to one body that deals with serious financial crime, the FSA, but to deny them to the other body that similarly deals with serious financial crime, which has such an impact on our economy.
It might be helpful if I explain that the intention is not for the Secretary of State, whoever they may be, to use the powers themselves. That will be for an appropriately senior prosecutor, meaning a chief prosecutor or deputy chief prosecutor in the Department. The reason that acting personally is in the clause is to disapply the Carltona doctrine on the use of powers granted to the Secretary of State. Under the Carltona doctrine, civil servants can exercise the duties and powers of their Minister. The provision in the Bill is a necessary safeguard to ensure that the exceptional and serious powers can be delegated by the Secretary of State to no more than two appropriately senior prosecutors within the Department. That is in keeping with the exceptional nature of the powers, and the practice that they should be exercised only by a small number of specific senior prosecutors in any prosecuting authority.
It might also be useful for the Committee to know that, as well as the safeguard of strictly limiting who can use the powers, there is an additional safeguard in that neither the FSA nor the Department for Business Enterprise and Regulatory Reform will be able to offer immunity from prosecution without the consent of the Attorney-General. That reflects the fact that such decisions are taken on a public interest basis and bind other prosecutors.

David Howarth: The Attorney-General consent provision alarmed me most, because it shows that there is some disquiet in government about how the clause will workotherwise one would not need to go to another Department for the safeguard. Would it be better, at a later stage, to put what the Minister has said about to whom the powers should be delegatedperhaps a duty to delegate themin the Bill? Otherwise, the impression will be given that the powers will be exercised literally personally by a Secretary of State, regardless of the identity of that Secretary of State, which does not sound proper.

Bridget Prentice: I shall reflect on that. I accept the strange nature of the phraseology, although I think that my right hon. Friend Lord Mandelson would be an excellent prosecutor should he ever want to turn his hand to that.
Subsection (4) covers the issues that the hon. and learned Gentleman has raised, and I will make sure that we look at it again. The Attorney-General will issue guidance, which will ensure a consistency of approach. There will be proper oversight of the use of the powers.

David Howarth: Subsection (4) says may not must.

Bridget Prentice: I accept the point made by the hon. Gentleman and will reflect on it.

Alun Michael: In her reflections, will my hon. Friend take on the point that the most important thing in delegation is transparency, so that it is clear if a decision is being taken by a Secretary of State. When officials are acting with the powers of a Secretary of Statenotwithstanding the Carltona doctrinethat ought to be made clear as well, because that is then honest and transparent.

Bridget Prentice: My right hon. Friend has made a very good point. Whether it is in the Bill or in some other form, we will make sure that clarity is maintained. On that basis, I ask the hon. and learned Gentleman to withdraw his amendment.

Edward Garnier: I am glad that the Minister has mentioned the Carltona doctrine because, as she will appreciate, in the pubs and clubs of Market Harborough, we talk of nothing else.
This short debate has exposed an important area of law that needs further clarification. It may be better arrived at in the other place, where they are not quite so time-constrained. The Minister is entirely right to say that the Attorney-General can issue guidance to particular prosecutors, because that is set out in subsection (7), but it is very much a may as opposed to a must point. I know from the olden days, when I worked in the Conservative Administration before the Attorney-General, there was a lot going on in that Department. Plenty of Ministers and Departments constantly contact the Attorney-Generals Department for advice about one thing and another, and so the issue of guidance will be yet another thing to land on the Attorney-Generals desk. We really need to think a little more carefully about the construction of clause 96 before it is enacted. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 96 ordered to stand part of the Bill.

Clause 97

Bail: risk of committing an offence causing injury

Edward Garnier: I beg to move amendment 218, in clause 97, page 58, line 29, after murder , insert , attempted murder, manslaughter, rape or attempted rape.

Frank Cook: With this it will be convenient to discuss the following:
Clause stand part.
Amendment 219, in clause 98, page 59, line 4, after murder, insert
, attempted murder, manslaughter, rape or attempted rape.
Amendment 220, in clause 98, page 59, line 7, after murder, insert
, attempted murder, manslaughter, rape or attempted rape.
Amendment 221, in clause 98, page 59, line 19, after murder, insert
, attempted murder, manslaughter, rape or attempted rape.
Amendment 222, in clause 98, page 59, line 20, after murder, insert
, attempted murder, manslaughter, rape or attempted rape.
Clause 98 stand part.
New clause 22Bail: public protection to be an explicit consideration
In Part 1 of Schedule 1 to the Bail Act 1976 (c. 63) (defendants accused or convicted of imprisonable offences) after paragraph 2(1)(a) insert
(aa) pose a risk to public safety, or..
New clause 23Prohibiting bail owing to previous convictions for most serious offences
(1) In section 25 of the Criminal Justice and Public Order Act 1994 (c. 33) (no bail for defendants charged with or convicted of homicide or rape after previous conviction of such offences) for subsection (2) subsitute
(2) This section applies, subject to subsection (3) below, to any of the serious violent offences in Part 1 of Schedule 15 and to any of the specified sexual offences in Part 2 of Schedule 15 to the Criminal Justice Act 2003.
(2) In consequence of the amendment made by subsection (1), the title of section 25 of that Act is amended by the substitution of serious violent offence or sexual offence for homicide or rape..
New clause 24Removing presumption of bail for convicted but unsentenced prisoners
(1) In section 4 of the Bail Act 1976 (c. 63) (general right to bail of accused persons and others), omit subsection (4) (a person who is convicted of an offence and whose case is adjourned etc).
(2) In Part 1 of Schedule 1 to the Bail Act 1976 (c. 63) (defendants accused or convicted of imprisonable offences), after paragraph 6 insert
6ZA The defendant need not be granted bail if he has been convicted but not yet sentenced for an imprisonable offence...
New clause 25Removing presumption of bail for prolific or persistent offenders
In Part 1 of Schedule 1 to the Bail Act 1976 (c. 63) (defendants accused or convicted of imprisonable offences) after paragraph 6 insert
6ZB The defendant need not be granted bail if he is 18 years or over, has been sentenced for recordable offences by the Crown Court or a magistrates court on three or more occasions, and within 3 years of the date of the pronouncement of the last such sentence by a court in England and Wales is subsequently arrested (or had information laid against him) for a further recordable offence...
New clause 26Removing presumption of bail for those previously convicted of breaching bail
In Part 1 of Schedule 1 to the Bail Act 1976 (c. 63) (defendants accused or convicted of imprisonable offences) after paragraph 6 insert
6ZC The defendant need not be granted bail if he has previously been convicted for breaching bail whether by failing to abide by bail conditions or by failing to surrender to custody under section [Breach of bail an offence] of the Coroners and Justice Act 2009...
New clause 27Breach of bail an offence
(1) Subject to subsection (7), an accused who having been granted bail fails without reasonable excuse
(a) to appear at the time and place appointed for him to surrender of which he has been given due notice, or
(b) to comply with any other condition imposed on bail,
shall, subject to subsection (3), be guilty of an offence and liable on conviction to the penalties specified in subsection (2).
(2) The penalties mentioned in subsection (1) are
(a) a fine not exceeding level 3 on the standard scale; and
(b) imprisonment for a period
(i) where conviction is in the magistrates court, not exceeding 60 days, or
(ii) in any other case, not exceeding 12 months.
(3) Where, and to the extent that, the failure referred to in subsection (1)(b) consists in the accused having committed an offence while on bail (in this section referred to as the subsequent offence), he shall not be guilty of any offence under that subsection but, subject to subsection (4), the court which sentences him for the subsequent offence shall, in determining the appropriate sentence or disposal for that offence, have regard to
(a) the fact that the offence was committed by him while on bail and the number of bail orders to which he was subject when the offence was committed;
(b) any previous conviction of the accused of an offence under subsection (1)(b); and
(c) the extent to which the sentence or disposal in respect of any previous conviction of the accused differed, by virtue of this subsection, from that which the court would have imposed but for this subsection.
(4) The court shall not, under subsection (3), have regard to the fact that the subsequent offence was committed while the accused was on bail unless that fact is specified in the indictment or, as the case may be, specified in the summons to the magistrates court.
(5) Where the maximum penalty in respect of the subsequent offence is specified by or by virtue of any enactment, that maximum penalty may, for the purposes of the courts determination by virtue of subsection (3) of the appropriate sentence or disposal in respect of that offence, be increased
(a) where it is a fine, by an amount equivalent to level 3 on the standard scale, and
(b) where it is a period of imprisonment
(i) as respects a conviction in the Crown Court, by 12 months, and
(ii) as respects a conviction in the magistrates court, by 60 days,
notwithstanding that the maximum penalty as so increased exceeds the penalty which it would otherwise be competent for the court to impose.
(6) Where the sentence or disposal in respect of the subsequent offence is, by virtue of subsection (3), different from that which the court would have imposed but for that subsection, the court shall state the extent of and the reasons for that difference.
(7) An accused who, having been granted bail in relation to a charge on indictment, fails without reasonable excuse to appear at the time and place appointed for him to surrender, of which he has been given due notice, shall be guilty of an offence and liable on conviction on indictment to the following penalties
(a) a fine; and
(b) imprisonment for a period not exceeding 2 years.
(8) At any time before the trial of an accused on indictment for the original offence, the court may on its own initiative, or give permission to the prosecution to, amend the indictment to include an additional charge of an offence under this section.
(9) The penalties provided for in subsection (2) may be imposed in addition to any other penalty which it is competent for the court to impose, notwithstanding that the total of penalties imposed may exceed the maximum penalty which it is competent to impose in respect of the original offence.
(10) A court which finds an accused guilty of an offence under this section may remit the accused for sentence in respect of that offence to any court which is considering the original offence.
(11) In this section the original offence means the offence with which the accused was charged when he was granted bail or an offence charged in the same proceedings as that offence..

Edward Garnier: We now move on to a different aspect of the law and bail procedure, which can be simply described. Amendments 218 to 222 simply seek to add to murder other offences, including attempted murder, manslaughter, rape and attempted rape. The amendments therefore add a further list of offences that the court should be wary of when granting bail. The default position would be that a person will not get bail if they have been charged with one of those offences, whereas that is not necessarily the case at the moment.
We further expand our thinking in relation to those sets of offences by our new clauses 22 to 27, which I shall explain as briefly as I can. New clause 22 seeks to amend the Bail Act 1976 by adding a requirement for the court to consider the way in which the applicant poses a risk to public safety. I suspect that this is in the back of every magistrates or judges mind when they are considering application for bail: does this person constitute a risk to public safety? However, it would be helpful to set out that consideration expressly in the 1976 Act.
New clause 23, and a number of those that follow it, seeks to adjust the way in which those who are asking for bail are dealt with by the courts. New clause 23 adjusts section 25 of the Criminal Justice and Public Order Act 1994, which deals with
no bail for defendants charged with or convicted of homicide or rape after previous conviction of such offences.
Proposed new paragraph (2) of that new clause amends the text of that part of the 1994 Act.
The important part of new clause 24 is proposed new paragraph 6ZA:
The defendant need not be granted bail if he has been convicted but not yet sentenced for an imprisonable offence.
It seems a matter of common sense that, if someone has been convicted of a reasonably serious offence, but is yet to be sentenced because the court has adjourned sentencing for pre-sentence reports or for other reasons, we need to be careful not to grant bail in the interim.
New clause 25 deals with the removal of the presumption of bail for prolific, or persistent, offenders. Again the important part is proposed new paragraph 6ZB:
The defendant need not be granted bail if he is 18 years or over, has been sentenced for recordable offences by the Crown Court or a magistrates court on three or more occasions, and within 3 years of the date of the pronouncement of the last such sentence by a court in England and Wales is subsequently arrested (or had information laid against him) for a further recordable offence.
All too often, one reads in the newspapers and comes to learn through constituency casework of offenders who reoffend, on any number of occasions, while on bail. While I am not seeking wholly to remove the courts discretion to grant bail in appropriate cases, we need to be much more thoughtful about granting bail to that type of offender.
New clause 26 deals with those previously convicted of breaching bail. Someone who has shown a history of not respecting bail conditionseither by failing to turn up when required to report, or by otherwise abusing the licence that was given to them under a bail ordershould not be treated in the same way as someone coming before the court for the first time.

David Howarth: I do not agree with a lot of what the hon. and learned Gentleman has said. However, on that particular point, it is already an offence not to report. His new clause adds an offence of breaching a conditiononly that point is new.

Edward Garnier: I agree with the hon. Gentleman.
New clause 27 has been taken from Scottish legislationit is more or less a direct lift, so I cannot claim to have been clever about it. However, I have adjusted the Scottish legislation and put it, I hope, in terms that fit within the jurisdiction of this country. New clause 27 would create a specific offence of breaching bail, for which the court could impose an additional penalty to the one that would be imposed for the underlying substantive offence. I will not go through new clause 27, because it is in the amendment paper, but I hope that the scheme behind it, which has, I think, been in place in Scotland for about 10 years, appeals to the Committee.
That brings us to the end of discussing the new clauses that are relevant to this debate. The scheme is an attempt to tighten up bail, give the public greater confidence in the bail system and make practitioners and those who grant bail more wary of giving bail to those whom the public might not think deserve it.

David Howarth: I hope that the Government resist these new clauses and amendmentsalthough it is partly the Governments fault for putting clauses about bail in the Bill in the first place. I think that those clauses are largely there for symbolic value, rather than to make any big practical difference to what is going on.
Two cases have received a lot of publicity: the Weddell case and the Peart case. In the latter case, it should be remembered that the defendant was not on bail in the first place, so it comes down to the Gary Weddell case. There is no need for a panic about bail based on one exceptional case. I urge both the Government and the Conservative party to stay calm and not go down a damaging route that could, in the end, increase the crime rate.
At the end of 2007, the Justice Committee visited Canada, which is normally known for its progressive criminal justice policies. When we visited a large prison near Toronto, we found that it was packed full of people on remand because of bail panic in Canada. The prisoners were not doing anything in the way of activities, because it is difficult to fit remand prisoners into the regime of a prison. They ended up spending a long time on remand and before appearing before the courts. They were often given either no prison sentence at all or a prison sentence equivalent to their time served, and then they were released. Canada ended up with a large prison population, when the prison population had previously been falling. That decline was halted, and a prison population was created that was doing nothing at all constructive. We need to be aware of the dangers of having panics about bail in this country, too.
The consistent view that one gets from practitioners is that bail is virtually never given in murder cases. The Government conducted a snapshot survey in which they found that a surprisingly high percentageI cannot remember the exact figure, but I think it was 13 per cent.of defendants in homicide cases had been given bail. That does not fit with the experience of any practitioner to whom I have talked in any court. In fact, Liberty has suggested that such a high percentage is simply a one-off problema blipbecause there was one case in which a large number defendants who were all aged under 21 were given bail. I urge the Government to conduct another survey, before Report, to see whether they obtain a result consistent with the previous one, because that is not what practitioners say, and it is certainly not what magistrates say. Perhaps I should remind the Committee of my interestmy wife is a magistrate.

Edward Garnier: We have not forgotten.

David Howarth: I am afraid of the competitive punitiveness that often breaks out between the Labour and Conservative parties. In this case, it is not just that it might not do any good because it is based on one exceptional casethe Weddell casewhich could have been dealt with differently under existing provisions, but it might even lead to an increase in crime in the long term. The problem with tabloid populism is that tabloid editors must respond only to the short term and to selling their paper the following day. They do not have to take responsibility for the long-term consequences of their decisions.

Edward Garnier: Like the Liberal Democrats.

David Howarth: In this case, we have a particular responsibility to call the other parties and tell them not to do that, because they do not have to and it may make the problem worse.
One must understand how bail works to see what the problem is. If someone is remanded in custody, there are only three possibilities for what might happen to them. First, they may eventually be found guilty and sentenced to prison. Secondly, they may be found not guilty or the case may be dropped, in which case they will be released. Thirdly, they may be found guilty, but sentenced in some way other than prison. Those three possibilities show what the problem is with tightening bail.
The first possibility is that someone is found guilty and sentenced to prison. The time that they served on remand is deducted from their sentence, so putting someone on remand in custody does not increase the time that they spend off the streets in prison, and does not reduce the risk of offending or protect the public. In fact, to the extent that putting people in prison increases the risk of reoffending, it increases the risk of future crime. We know, and the Ministry of Justice briefing shows, that if people are put in prison, they often lose their job and their home, and we know that those two conditions are associated with an increased risk of reoffending.
My remarks do not apply to the Governments proposals, because there will be so few casesvirtually nonethat they will make no difference, but they may apply to the Conservative partys proposals. From the information given by the Conservative party and certain assumptions, the Library calculates that they will increase the prison population by about 3,000. That is a problem, and those 3,000 people, because they will have been imprisoned, will be more likely to reoffend than people who have not been put in prison.
The second possibility is that the person is found not guilty, the case is dropped and the person is released. In that case, what happens? We will have imprisoned an innocent person for up to six monthsthat is how long people are held on remandand perhaps made them worse by putting them in a position in which they lose their job and their home. The third possibility is that the person receives a non-custodial sentence, in which case we will have imprisoned someone whom the court eventually decides should not be in prison with all the effects that that might have.

Maria Eagle: The hon. Gentleman seems to be arguing against remanding people into custody at all. Is that his argument?

David Howarth: That is just one of those populist points that people make. The Bail Act 1976 works. The 1976 Act, under which the Government themselves are operating, creates a presumption in favour of bail. Are the Government saying that they are against a presumption for bail? If they are, they should put a clause saying that into the Bill. However, they have not done so and, since they have not, the Ministers point also applies to her. Is that what she is saying? No, it is not. Therefore it is also not what I am saying.
The point is that there is a presumption for bail with certain exceptions that are designed to balance the public interest against the downside of remanding people in custody. The question is whether that balance should go in one direction or another. The problem is that, if it is shoved in the direction of bail panic, more crime will be caused in the long term, not in the short term. The tabloid headlines might be avoided in the short term, but in the long term there will be more victims of crime.
I do not want to go through the new clauses one by one, but there are problems with particular ones. The problem with new clause 24, for example, which is about removing the presumption of bail for convicted but unsentenced prisoners, is precisely the problem that I have raised. If someone is remanded in custody for a time, that time is knocked off their prison sentence, so the public are not protected for any more time. If the person is sentenced to a non-custodial sentence, there is a presumption in the law that contradicts the courts eventual decision. I cannot see how that works.
I do not want to mention all the new clauses one by one, but there are serious problems with all of them. New clause 23, for example, violates human rights standards under existing case law and therefore could not possibly survive. A version of that new clause in the existing law was read down by the courts, because it violated human rights standards.
The political system has to get off the merry-go-round and start thinking about the long term and about how we reduce crime. Amendments with the same intent to the new clauses have been tabled on the part of the Bill dealing with the sentencing provisions, which we will come to later on. This is really about whether criminal justice policy works to reduce crime or to reduce bad headlines.

Bridget Prentice: In order that we can get to the debate on sentences, I shall try to be as brief as I possibly can.

Ian Lucas: Hear, hear.

Bridget Prentice: I thank my hon. Friend the Whip, who supports that.
I assume that some of the amendments express the views of the previous shadow Secretary of State for Justice, who issued proposals on the matter in summer last year. However, although he has moved on, clearly the policy has not. I understand the motive behind extending the provisions beyond murder. In some ways, it does not seem unreasonable that the provisions should extend to crimes that give rise to apprehension of further violence elsewhere. But there are two reasons why I feel unable to accept the amendments.
First, it is right to keep the focus on the offence of murder, which has a unique position within the criminal justice system because of its seriousness, and dealing with that offence is the best way to address the concerns of the public. Obviously, the line has to be drawn somewhere. There are strong precedents for treating murder differently from other offences.
Secondly, and more practically, clause 98 requires bail decisions in murder cases to be made by a Crown court judge. If we were to extend that provision to catch defendants charged with other serious violent or sexual offences, the number of cases to which it would apply would substantially increase, which would have major implications for the Crown court. The number of defendants proceeded against for murder in 2007 was 812, whereas almost four times as many were prosecuted for attempted murder, manslaughter, rape or attempted rape. New clauses 22 to 26 seem to be designed to make remand in custody more likely for a larger group of people, as the hon. Member for Cambridge has pointed out.
The new exception to bail in new clause 22 is unnecessary. It is difficult to see how any defendant who is considered to pose a risk to public safety would not also be at risk of offending or interfering with witnesses, or otherwise obstructing the course of justice. Therefore, they need not be granted bail. The existing exceptions to bail are sufficient to protect public safety, and we do not see any need to add another.

David Howarth: I support the Minister on this. It is difficult to imagine a case where someone can be a threat to public safety and yet not likely to commit an offence while on bail. That seems to be impossible. The new clause adds nothing to the existing law.

Bridget Prentice: I am grateful to the hon. Gentleman for repeating my point in a different way. We believe that clause 97(3) is a better way of taking public protection into account. It makes the risk of injury to another person a consideration that the courts must have regard to when making bail decisions. It is not a free-standing exception to bail, but rather an adjunct to the existing one. It operates only where there are substantial grounds for believing that the defendant would commit an offence, if released on bail.
New clause 23 would extend the offences covered by section 25 of the Criminal Justice and Public Order Act 1994. It is right that a provision such as this, which is designed to affect the liberty of the unconvicted persons to whom it applies, should be very limited in its scope. The wider the range of offences caught by the new clause, the greater the likelihood that it will catch defendants who would properly be granted bail. The court would then have to strain to find a justification, in the form of exceptional circumstances, for granting bail. We do not think that it would be right to widen the provision in that way.
New clauses 24 to 26 would remove the right to bail for a different group of defendants. Under new clause 24 the presumption to bail would be removed from convicted but unsentenced defendants. The hon. Member for Cambridge made a perfectly valid point in relation to that. It would mean that offenders who are not likely to be sentenced for a period of imprisonment and who have given no cause for alarm during time already spent on bail would automatically lose that right to bail. We do not believe that to be necessary.
The right to bail does not prevent the court from remanding a defendant in custody, regardless of the remand status before conviction, if it believes that conviction, with the probability of a long prison sentence, has increased the risk of the defendant absconding, reoffending or interfering with witnesses.
New clause 25 would create an exception to bail, where the defendant has been convicted three times of a recordable offence. We are not convinced by that; it is a rather prescriptive approach and not necessarily the most helpful way to go about it. Having said that, the courts already take into account a defendants previous offending history when making remand decisions.
New clause 26 would mean that the defendant need not be granted bail, if they have a previous conviction for failure to surrenderwhich is already an offence under the Bail Act 1976or for breach of bail conditions, which is not already an offence, but would become so under new clause 27.
The problem is that the connection between the previous conviction, and the risk that justifies the refusal of bail, could be tenuous. For example, it is not evident that a defendant who failed to answer his bail 30 years ago as a youth is still not to be trusted now that he has achieved middle age and some element of respectability in his community. However, the court is required to take into account previous behaviour on bail when considering the risk of someone absconding, offending or interfering with witnesses. That is a more flexible approach that the one given by new clause 27, and we expect that the courts would be able to make the decision on a case-by-case basis.
New clause 27 suggests that failure to comply with court bail conditions, while not an offence at present, should be an offence. However, there are other ways in which to deal with the matter. The police already have a power of immediate arrest when a breach occurs, and courts can always revoke bail and remand the defendant in custody or alter the conditions, if they think it appropriate. The risk of immediate custody without the need of a trial is a strong incentive to comply with bail conditions, so we do not believe that there needs to be a separate offence of breach.
When an offence is committed while on bail and that fact is specified in the indictment, new clause 27 would require the court to have regard to that and to any previous convictions for breach of a bail condition when determining sentence. The fact that an offence was committed on bail is already an aggravating factor that the court should take into account, when considering the appropriate sentence for a particular offence. It is questionable therefore how much difference adding another year to the maximum penalty would be likely to make to the sentence actually imposed.
Has the hon. and learned Gentleman quantified the resource implications of the proposals? Does he accept, as the hon. Member for Cambridge has said, that an extra 3,000 prison places might be needed? How would that be achieved? However, that is an aside to the general principle that the new clauses are not necessary, because the clause strikes the proper balance between the right to bail and the exceptions that a court can take into consideration, if it considers that a particular defendant should not be given bail for the specific offence that is before them? On that basis, I ask the hon. and learned Gentleman to withdraw the amendment.

Edward Garnier: I am sorry that the hon. Member for Cambridge has accused me of following a tabloid agenda. I have been accused of many things in my time. I have even worked for a number of tabloid newspapers as a defamation lawyer, but I have never followed a tabloid agenda.

David Howarth: From the low key way in which the hon. and learned Gentleman discussed the new clauses, I fully accept that he personally rarely follows the tabloid agenda. However, on this occasion, his party does.

Edward Garnier: Let us not have a lengthy discussion about that matter. I hope to have a debate in a reasonably intelligent wayalthough I sometimes fall below thaton how the law of bail should develop. The Bill adjusts the Bail Act 1976. Common to both the Bill and the 1976 Act is the element of discretion that is given to the courts to deal with cases in a just way. As the hon. Gentlemans wife has no doubt experienced in the granting of bail applications as a justice of the peace on the Cambridge bench, I assume, so from time to time have I, as a recorder in the Crown courts of London as well as in Nottingham, to deal with bail applications. As, no doubt, does the hon. Gentlemans wife, I have to sentence people and do so after some delay between the finding of guilt and the sentencing hearing, so neither she nor I is unaware of the implications of some of the arguments and their logical extensions that I have been putting forward.
Having, as I have said at least once in our proceedings during the past few weeks, been to about 50 prisons in England and Wales in almost three years, I am utterly aware of the disgusting state of some of them and the identity and nature of some of those who are in them, and who should not be in them but elsewhere. I am wholly aware of the fact that, were my new clauses to be accepted, more people would be going to prison, but we cannot avoid such implications and consequences in order to have a moderately calm discussion about the law of bail.
I did not actually mention any particular caseothers have done so, but I deliberately did notbut one must look at the Governments record on prison capacity over the past 10 or 11 years, in which time prisoner numbers have increased from about 61,000 to about 83,000 but the available space to house them has not increased adequately to cope with them. In the case of about 20,000 to 23,000 prisoners, two men share a single-man cell, or sometimes three men share a two-man cell. In essence, when prisoners are doubled up, it means that two adult men spend long hours of every day eating, defecating, sleeping and reading in a shared lavatory.
One must be very careful about wanting more people to be pushed into such conditions or producing authorities that suggest that that should happen. I do not want to see that. I do not want to undermine judicial discretion on the granting of bail, but I do think that every now and then we need to think a bit more carefully about the situation.
I accept that this Government, who have been in office for the past 11 or so years, could not always be accused of thinking carefully. They frequently make many mistakes. I dare say that they do not do things by mistake, but they do make mistakes, and their approach to prisons, the law of bail and indeed the whole canon of criminal justice law is littered with mistakes. My purpose in discussing these clauses is not that I naively thought that everything that I said or drafted would find its way into the Bill but that I thought that we need to think about such matters from time to time. It does not matter whether we think about these questions in a rage or in a calm and rational manner; they need from time to time to be thought about. It was in that spirit that I entered the discussion, and it is in that spirit that I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 97 ordered to stand part of the Bill.

Clause 98

Bail decisions in murder cases to be made by Crown Court judge

David Howarth: I beg to move amendment 486, in clause 98, page 59, line 10, leave out 48 and insert 24.

Frank Cook: With this it will be convenient to discuss the following: amendment 487, in clause 98, page 59, line 10, leave out the day after.
Amendment 488, in clause 98, page 59, line 21, leave out subsection (7).

David Howarth: The clause sends bail decisions in murder cases to the Crown court, away from the magistrates court, and I want to ask why that should be. As a matter of practice, magistrates deal with bail applications every day. In fact, one of the main sources of activity in a magistrates court is these difficult and often technical decisions, which are dealt with by magistrates who are expert in them. Crown court judges simply are not. In fact, if one looks at the Weddell case, which I mentioned previously, the problem was that the decision did go to a Crown court judge. It was a Crown court judge who let that individual out on bail. In general, magistrates believe that Crown court judges are too soft in bail decisions, so one questions the policy underlying the clause. However, even if one did not question that policy, one should start to question the detail of how the clause works. We tabled our amendments for precisely that reason.
The Government seem to have been told that if one transfers such decisions from a magistrates court to a Crown court judge, there will be certain practical consequences. One is that a Crown court judge would take a long time to organisethere are fewer Crown court judges than magistrates and it is difficult to fit such applications into their lists. Therefore, the accusedthe defendantwill wait three days before receiving a bail hearing, whereas that would be only one day if the bail hearing were to be held in the magistrates court. I question whether holding someone for three days simply to find a Crown court judge is acceptable, when the matter could be dealt with more expeditiously by a magistrate.
Secondly, the clause implies that the Government have been told that Crown court judges do not work on weekends or in holidays, because the clause does not count those days in the period within which a bail hearing has to be heard. A great advantage of magistrates is that they are local and there are a lot of themmagistrates who are prepared to act on weekends can be found. The Saturday magistrates court is a common institution throughout the country.
We end up with the possibility of unacceptable delaysif we add together the three-day delay, a weekend and perhaps a bank holiday, we are looking at nearly a week without a bail hearing, simply because of the nature of Crown court judges as opposed to magistrates. My amendments would therefore get rid of the extra delays designed for the convenience of Crown court judgesthe three days and the exemption for weekends and bank holidaystaking the period back to the 24 hours that magistrates operate in
If the Government say in reply that the amendments would make the provision not practicable, it seems to me that the whole clause is impracticable and we should return those decisions to where they should be taken, in a magistrates court.

Bridget Prentice: Either of the changesthe reduction in the upper limit or the removal of the exclusionswould be impracticable individually and, together, wholly so. Secondly, the changes are unnecessary. Most defendants charged with murder are not granted bail and, even under the present system, those who are would not be granted bail by the magistrates courts. Defendants in such categories would not be affected in practical terms if the remand decision was delayed for the maximum period specified in the clause.
There are occasionally murder cases in which there would be a strong argument for remanding the defendant on bail. In those cases, which are rare, arrangements would be made to bring the case before a judge of the Crown court in much less than the 48-hour maximum. In those wholly exceptional cases in which there is a strong argument for immediate bail, the section 51 sending hearing might take place before a district judge who, using the powers available to him as a judge of the Crown court, could consider bail on the spot.
I ask the hon. Gentleman to withdraw his amendments, which are impracticable and unnecessary.

David Howarth: I note with interest that the Minister now agrees with me about how rare the granting of bail in murder cases isvery rare. She is using that very rareness as an argumentquite a good onefor saying that the amendments would make no difference, because in almost all cases the defendant is remanded in custody anyway. That is quite correct. The point is simply about process and whether it is acceptable to have such delays before that hearing, which almost inevitably results in remand in custody, simply because of the desire to have that decision taken by a Crown court judge rather than by a magistrate, who would make the same decision. It seems that the Government have not produced any evidence on which to base the transfer of such cases to the Crown court, especially given the fact that in the exceptional case where it plainly all went wrong, bail was granted by a Crown court judge in the first place. I urge the Government to think about why they are doing this. Is it simply for symbolic reasons? If it is, I urge them to think again. On the basis that the point has been made, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 98 ordered to stand part of the Bill.

Clause 99

Indictment of offenders

Bridget Prentice: I beg to move amendment 291, in clause 99, page 59, line 40, leave out fitness to plead and insert
whether the accused did the act or made the omission charged.
The amendment has been tabled because the clause as drafted is in error. In defining the point at which no objection to an indictment is to be taken, the clause states:
when a jury is sworn to consider the issue of guilt or fitness to plead.
Since the Domestic Violence, Crime and Victims Act 2004, it has been the sitting judge alone who makes a determination of fitness to plead. The amendment deals with that oversight and makes it clear that, where the judge finds a defendant unfit to plead, the relevant point after which no objections can be taken to the indictment is when the jury is sworn to consider whether the accused did the act or made the omission as charged.

Amendment 291 agreed to.

Clause 99, as amended, ordered to stand part of the Bill.

Clause 100

Sentencing Council for England and Wales

Alun Michael: I beg to move amendment 150, in clause 100, page 60, line 17, at end insert
(1A) The purpose of the Council shall be to issue guidance to sentencers, having particular regard to the effectiveness of each form of sentence in reducing re-offending..

Frank Cook: With this it will be convenient to discuss the following: clause stand part.
Amendment 160, in schedule 13, page 148, line 20, at end insert
(c) 6 members appointed by resolution of the House of Commons..
Amendment 161, in schedule 13, page 148, line 20, at end insert
(c) 6 members appointed by the Prime Minister (independent members)..
Amendment 158, in schedule 13, page 149, line 2, after to, insert
their experience and capacity for evaluating evidence on the effectiveness of different sentences, and to.
Amendment 162, in schedule 13, page 149, line 7, at end insert
(5) When appointing independent members, the Prime Minister shall have regard to their experience of and capacity for assessing evidence especially in relation to the effectiveness of sentences in terms of reducing re-offending..
That schedule 13 be the Thirteenth schedule to the Bill.
Clause 101 stand part.
Amendment 153, in clause 102, page 60, line 33, at end insert
(1A) In proposing sentencing guidelines the Sentencing Council must have specific regard to the comparative effectiveness of different sentence options and indicate the data, research findings or other evidence on which the Council has relied in preparing its guidance..
Amendment 151, in clause 102, page 61, line 25, at end insert
(aa) The relative effectiveness of different sentences in preventing re-offending;.
Amendment 152, in clause 102, page 61, line 28, leave out and their relative effectiveness in preventing re-offending..
Clauses 102 to 118 stand part.

Alun Michael: It is my pleasure to have tabled amendment 150, which introduces a group of amendments that I am sure Ministers will find constructive and helpful. My amendments are intended to provide clarity and focus in the work of the sentencing council, whose establishment under the Bill I welcome and applaud. All that I will say about the Opposition amendments that would prevent the establishment of the sentencing council is that I disagree profoundly with that approach. I agree with the Government that there should be a sentencing council and that sentencers should not only hear a case objectively and fairly before reaching a judgment, but have a good idea of the outcome that will follow from the sentence that they give. That is the fundamental reason for having a sentencing council, but if that is to work, the council needs to be genuinely objective and focus its work on real, hard evidence. The Bill as it stands does not achieve that sort of clarity or give that sort of role to the sentencing council.
I suspect that Ministers will share my general frustration that the so-called explanatory notes that accompany any Bill are rarely clearer than the Bill itself: they rarely provide any explanation and contribute only to the recycling targets in this Houseindeed, they ought to be recycled as opaque and unhelpful notes. That is not the fault of the officials who draft them, but there is a degree of paranoia about saying anything useful that might affect the interpretation of the Bill itself.
Although the notes on this clause are as useless as ever, they unintentionally reveal a defect in the Bill. Paragraph 528 says:
When it draws up guidelines, the Council must have regard to current sentencing practice, the need to promote consistency in sentencing, the need to promote public confidence in the criminal justice system, the cost of different sentences, their effectiveness in reducing re-offending and the Councils monitoring of the application of its guidelines.
The problem is that we get to item five of six before we find a reference to the effectiveness of reducing re-offending. The order of priorities is wrong. Even if it is argued that each of the six items is of equal importance, the effectiveness of sentencing in reducing reoffending is not given the high priority that it needs. Such an item is essential and should be the focus of the sentencing council.
My amendments are intended to address two key questions, which are not answered by the Bill as it is drafted. First, what is the sentencing council for, and what is it meant to achieve? That is not dealt with in the Bill as it stands. Amendment 150 provides clear purpose for the Bill. It states:
The purpose of the Council shall be to issue guidance to sentencers, having particular regard to the effectiveness of each form of sentence in reducing re-offending.
That means not that other considerations must be cast to one side, but that effectiveness must be the clear first focus, the first thing that enters the mind of members of the sentencing council when they reach their conclusions.
The second big question is who should be on the council and why? I have made two contributions in that regard. Amendments 160 and 161 propose that there should be additional members. Either amendment would improve considerably the membership of the sentencing council. Amendment 160 proposes:
6 members appointed by resolution of the House of Commons.
Amendment 161 proposes an alternative or complementary approach. It says:
6 members appointed by the Prime Minister (independent members).
I then address the issue of who such people should be. Amendment 158 would insert the words
their experience and capacity for evaluating evidence on the effectiveness of different sentences.
That is important because judges, who are to be members of the sentencing council, bring experience of the courts and of judgments. They do not bring experience of the effectiveness of sentences once they are passed.
I wanted to clarify the purpose of members appointed by the Prime Minister, so in amendment 162, I propose the following:
When appointing independent members, the Prime Minister shall have regard to their experience of and capacity for assessing evidence especially in relation to the effectiveness of sentences in terms of reducing re-offending.
That is to ensure that the people appointed are capable of addressing the key question of how to reduce reoffending, which has to be at the core of what the criminal justice system is about, but is currently not at the heart of what the criminal justice system thinks it is aboutif I can address such a complex organisation in that way.
Amendment 153 places a similar responsibility on the sentencing council itself. It says:
In proposing sentencing guidelines the Sentencing Council must have specific regard to the comparative effectiveness of different sentence options and indicate the data, research findings or other evidence on which the Council has relied in preparing its guidance.
I will touch on the Carter review in a moment, but there is a case for arguing that a link between the evidence and the conclusions is something that should be made compulsory. My point is that we should ensure not only that the right people are on the sentencing councils and that they have the right skills but that they are told what their priority is with regard to reducing reoffending.
Amendments 151 and 152 would, by deletion, extract
and their relative effectiveness in preventing re-offending,
from low down the list of priorities and make the provision the first priority on the list of elements that the sentencing council would take into account when making its recommendations.

Edward Garnier: Judges have some experience of the effectiveness of their sentences, because, all too often, they see offenders again and again. Judges therefore takes a close interest in the effectiveness of their sentence, for fear that it will not prevent, or help to prevent, reoffending.

Alun Michael: I understand the hon. and learned Gentlemans point and respect his belief in judges capacity to evaluate the impact of sentencing. However, his belief is not well placed. The problem is that, in seeing before them people who constantly reoffend, judges see the outcome of failure, not of effectiveness. I shall give an example of that in a few moments.

Edward Garnier: On drug treatment and testing orders, judges review the individual, who comes back at two to four-week intervals, and one can often see the progression from drug addiction to health. It is one of the few occasions on which a relationship builds up between the judge as a human being and the defendant as a human being, rather than a statistic flowing down the criminal justice stream. That is something from which we can really benefit.

Alun Michael: I am happy to agree with the hon. and learned Gentleman, but he makes my case for me, because that, in his own words, is the exception when it comes to sentencing. It is a valuable and useful one, not only for the person who undertakes the rehabilitation and whose situation the judge reviews, but for the judge, who can see its progression.
I used to chair the youth courtthen the juvenile benchin Cardiff, and I felt that the engagement of the sentencer with what happened after the sentence was particularly useful. My experience was informed by the fact that I was a youth worker with young offenders, and those whom I had sentenced often appeared on projects I ran. It was a salutary experience, because I thought that when I had told youngsters precisely why a particular sentence had been decided upon, they would understand every word; by and large, however, they had either not understood or not heard a word in the court situation.
The link between the sentence and what happens afterwards is often not available to sentencersI hasten to add that I never sat on a case involving a youngster about whom I had prior knowledge, because that would not have been right. On occasions, however, I saw the consequences of the sentencing process and its limitations, and that has encouraged me in the approach I propose.
In response to the hon. and learned Gentlemans interventions, my point is that the relevant experience of judges, to which he referred, is already available to the sentencing council. At present, judges are to be on the council and in the majority, which is fundamentally wrong. Their experience should form a part of the councils deliberations, but not the whole of it; there is more to it than that. My basic belief is that the sentencing council should be about evidence, evidence, evidence. I do not mean court evidence or evidence heard in court, or evidence about the nature and seriousness of a specific offence; I mean evidence of what works.
Judges are influenced by the media and by political debate in the media, as they acknowledge. They tell us so, and sentences demonstrate that they are influenced by the wider media debate. I am thinking of, for instance, the increase in prison numbers. The public think that courts are extremely lenient, yet in fact the evidence is that by and large courts take the decisions that the public would take if they were passing the sentence. The reality is closer to what the public think is just and right.
The sentencing council needs to balance the tendency to be influenced by wider public and media debate, by having the guiding principle that it is informed by what actually happens as a consequence of different sentencing options.

David Howarth: I agree with every word that the right hon. Gentleman has said, as other Committee members will be able to tell from the fact that I have signed nearly all his amendments. I would like to illustrate the point about judges not knowing. I once had a conversation with a High Court judgeI will not name themwho said to me, We should go back to the short sharp shock. People come before my court and I see them not responding, so a short sharp shock would work. The evidence shows that short sharp shocks do not work. The social science evidence on that is very clear, but eminent judges have never been exposed to that sort of evidence and they need to be.

Alun Michael: The hon. Gentleman has made a good point, and I am grateful for his support for my argument. In the course of visiting a number of penal institutions in America, I found attending a boot camp a salutary experience. For the first half-hour that I was there, I thought I was seeing all the characteristics associated with a short sharp shock. The young men in the boot camp were being marched around, barked at, made to smarten themselves up and all the rest of it. However, I thought that something different was going on when I saw the number of people, including volunteers, who were engaged with those young men when they went into the educational part of the establishment. There, they were made to pay attention, but they were, in effect, being dragooned into learning to read and write.
The headline Short Sharp Shock had the subscript of Lets make sure that these young men go from this place with the ability to read and write, because then there is a chance of them becoming useful members of society. That is why it is very important to get under the headlines of what sentencing is about, into the detail, and in understanding that detail, to understand that sometimes a headline can be combined with something that works, and sometimes something that works can be combined with a headline that reassures the public.

Edward Garnier: The more I listen to the right hon. Gentleman, the more I think that he must have read our paper Prisons with a Purpose, published last March. I want to make a helpful intervention in relation to the point made by the hon. Member for Cambridge. I am sure that what the High Court judge said was what he thought was right, but by and large High Court judges tend to try the most serious criminal cases and therefore they do not deal with the sentencing options that the right hon. Member for Cardiff, South and Penarth as a magistrate or I as a recorder have to deal with. For what we are talking about, the evidence will most usefully come from the general infantry of Crown court judges and magistrates, rather than from the High Court.

Alun Michael: Listening to the hon. and learned Gentleman, I think that his contribution is informed by his experience as a defence barrister, rather than a recorderI am sure that the judges will be very pleased with their advocate here. I am not talking against judges; I am merely trying to define the limitation on the sentencing council if only judges bring their issues to bear. At the top end of dangerthe most dangerous criminalsI am not too bothered about that, because that is where the public need to be protected and where the focus of the court system is quite good. It is the generality that I am concerned about. We have ended up with numbers of people who do not need to be in the criminal justice system or do not need to be in it in the long term and who could be taken out of it by interventions at the right stage.

The Chairman adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Four oclock.